Onesti v. Freelon (1882) · DecisionDepot

Onesti v. Freelon

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Oct 30, 1882 No. No. 7,235Published

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Holding. A writ of review must be directed to the tribunal rather than the judge, and the court lacks authority to affirm the underlying judgment when dismissing the writ for procedural defects.

Issues

Whether a writ of review directed to a judge instead of the court is procedurally improper.
Whether a court may affirm an underlying judgment when dismissing a writ of review for procedural defects.

Disposition. Remanded with instructions to modify the order; otherwise affirmed.

Quotations verified verbatim against the opinion

“the writ should have been directed to the Court instead of the Judge, and the return should have been made by the Clerk.”

“so much of the order as affirmed the judgment of the Municipal Court of Appeals was made without authority of law, and was error.”

Synopsis

Weit of Review—Ho.w Directed.—Section 1070, Q. O. P., requires a writ of review to be directed to the Court, the proceedings of which are sought to bo reviewed and not to the Judge of the Court.

Return by Whom Made to Writ of Review.—In this case the return should have been made by the Clerk and not by the Judge.

Practice—Presumption as to Grounds of Order.—A motion was made in the Court below to dismiss the writ, on the grounds that the same was improperly' issued and for want of prosecution. As the order granting the motion is silent as to the ground upon which it was granted, it will be presumed that it was granted on both grounds.

Error to Determine Merits of Case on Motion to Dismiss a Writ.—On a motion to dismiss a writ of review or other similar writ on the grounds that it was improperly issued, and for want of prosecution it is error for the Court to adjudicate upon the merits of the case, further than may necessarily result from granting the motion.

The Court: The Court below made an order granting a motion to dismiss the writ of review, and affirming a judgment of the Municipal Court of Appeals. The allegations in the petition, and the relief demanded, are pointed to said Thomas W. Freelon, Judge of the Municipal Court of Appeals of the City and County of San Francisco; the writ of review was directed to said Thomas W. Freelon, as such Judge, and the return was made by him.

According to Section 1070, Code Civil Procedure, the writ should have been directed to the Court instead of the Judge, and the return should have been made by the Clerk. The proceeding contemplated by the Code is a proceeding against the tribunal instead of the Judge.

The motion to dismiss was made on the grounds that the writ was improperly issued, and for want of prosecution. The order granting the motion does not state the grounds on [628]which it was granted; therefore we presume it was on both grounds stated in the motion.

Where a motion is granted dismissing a proceeding of this kind, on the grounds that the writ was improperly issued and for want of prosecution, the merits of the case (further than may necessarily result from granting the motion) are not for adjudication. Therefore, so much of the order as affirmed the judgment of the Municipal Court of Appeals was made without authority of law, and was error. The capse is remanded with instructions to strike out of the order the objectionable clause, and in all other respects the order is affirmed.

Onesti v. Freelon

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